In this post, I want to take a look at the criminal conviction of South Carolina congressman Robert Smalls. Smalls is a celebrated figure in American history. Born enslaved in South Carolina, he not only freed himself during the Civil War, but also he stole a Confederate gunboat and sailed it to Union lines. After the war, he entered politics and became one of the most successful politicians in the state. Recently, the South Carolina government has recently decided to honor him by installing a statue of him on the statehouse grounds. An awkward issue that I have rarely seen discussed is that Smalls is a convicted criminal! In 1877, Smalls was sentenced three years in the state penitentiary for taking a bribe while a state congressman.
Certainly, nobody wants to condemn such a celebrated war hero, and Smalls's conviction is easy to dismiss. He was convicted only months after South Carolina's Reconstruction government had been overthrown by one dominated by conservative white supremacists. Smalls's prosecution was just one of a number of measures that the new government took to eliminate the power of their hated political opponents. The members of the conservative government are hardly sympathetic figures. They had won the 1876 election through political fraud and violence that resulted in the death of scores of Black men. It takes little imagination to see Smalls's conviction as the groundless outcome of a kangaroo court. However, I want to go beyond imagining and look at the details of the trial.
The legal process
Most members of the public first learned about the prosecution of Robert Smalls during the first week of October 1877. That week, a sheriff's deputy, acting on a grand jury indictment, arrested Smalls and brought him to the state capital of Columbia. On October 8, the presiding judge held a preliminary investigation which resulted in Smalls being released on bond and ordered to appear before the court at the end of the month for a jury trial.
Smalls's arrest made national news. South Carolina had captured the county's attention for months. The presidential election had been held a year earlier, and the outcome hinged on how disputed votes in South Carolina (and a few other states) were counted. Deliberations dragged out for months, and the dispute threatened to explode in mass violence. At one point, Union soldiers were sent to defend the statehouse against an armed paramilitary group organized by conservative Democrats. The issue was ultimately decided in April 1877. South Carolina's electoral votes were given to the Republican candidate (Hayes), but conservatives won many important state offices including the governorship after the Republican candidate conceded defeat.
The newly elected conservative government was committed to permenently rolling back all the political changes that had taken place since the Civil War. A major source of anger was the conduct of elected officials. The men who had held office, conservatives alleged, were totally corrupt and had robbed the state blind. The office of attorney general was among the offices won by conservatives, and the new A.G, James Conner, was presented with a laundry list of former politicians to prosecute. The Post and Courier newspaper published an article advocating that dozens of former politicians (listed by name) should be arrested and punished as criminals.
Smalls was on the Post and Courier's list, and he was an especially attractive target. Not only was Smalls a prominent Republican politician, but he was one of the few Republicans to win in the 1876 election, making him a sitting U.S. Congressman. A criminal conviction would potentially remove him from office and discredit the state Republican party. In contrast, most of the Republicans that conservatives wanted to prosecute were no longer in office (having lost the election), and in many case, they had left the state entirely.
The Facts of the Case
Robert Smalls's trial began on Thursday November 8. The legal facts were straightforward and had largely been established at the preliminary hearing in early October. State prosecutors claimed that Smalls had accepted a bribe of $5000 (a huge sum of money, comparable to one or two years's salary for a state employee) in December 1872. That month, the state legislature was considering a bill that would grant a lucrative printing contract to a company partially owned by the clerk of the senate, Josephus Woodruff. The day after the bill was introduced to the senate (on December 18), prosecutors alleged that Woodruff invited Smalls to his office and offered him money in exchange for his support of the bill. Smalls accepted and voted in favor of the bill on the next day. The bill passed and was ratified into law.
The day that the bill was ratified was the last day before the senate adjourned for the winter vacation. The senate reconvened on January 7, 1873, and approximately a week later (on January 16), Woodruff allegedly presented Smalls with a check for his services. Smalls deposited the check at a local bank on the 18th, and he withdrew the funds in cash a month later (on February 8).
The prosecution's evidence consisted on testimony from Woodruff himself as well as a bank clerk, L. N. Zealy, as well as physical evidence that the two men provided. Woodruff provided the account of bribing Smalls, and he supported his recollections with the physical check he gave Smalls and written records from his personal memorandum book. The bank clerk testified that the bank transactions had occurred as Woodruff had described them.
Smalls did little to defend himself before the court. His lawyer presented no evidence of his own, and he waived the right to cross-examine witnesses. His closing argument was simply that the evidence presented was insufficient to convict. He did point to some weaknesses with the evidence. For example, Woodruff's memorandum book was written in a specialized short-hand that was decipherable only to him, so the jury had to take him at his word as to what it said.
The entire trial took four days, and on Sunday morning, the jury returned the verdict of "guilty." The outcome wasn't really in doubt. The evidence was stronger than the evidence offered in the first of the corruption trials, and that trial had resulted with a guilty verdict only two days before Smalls's trial. His own Republican Party appears also to have doubted Smalls's innocence. Smalls' had asked President Hayes to have his case transferred to a (more favorable) federal court, but he declined.
Smalls was allowed to remain on bond until he was sentenced. He and the two other men who had been convicted of corruption charges were sentenced on November 26. Smalls' sentence was the harshest: three years hard labor in the state penitentiary. (The others were fined and sentenced to shorter terms in county jails.)
The outcome
Despite the sentence, Smalls' legal problems ultimately just petered out. After the conviction, he was allowed to remain on bond while he appealed the conviction. The appeals process continued until the summer of 1879. On April 23, the whole matter became moot as the governor pardoned him.
Smalls's pardon appears to have had little to do with the law and everything to do with politics. The governor seems to have used Smalls and the other two men convicted on corruption charges as bargaining chips in negotiations over criminal charges against conservatives. In 1872, the federal government had launched a major prosecution effort against the South Carolina Ku Klux Klan, and several of the men convicted were still in a federal penitentiary in 1878. Conservatives feared further legal prosecutions for the violence and fraud they had engaged in during the 1876 election.
Smalls's pardon appears to have been part of a (possibly tacit) quid pro quo between the governor of South Carolina and the president. In the summer of 1878, the president pardoned everyone who had been convicted in the South Carolina Ku Klux Klan trials, and the next year, the U.S. attorney for South Carolina non prossed all pending election fraud cases against white conservatives.
The ultimate consequences for Smalls's appear to have been small. He was never imprisoned for a significant amount of time. His public reputation does appear to have declined, but he was still able to return to U.S. Congress in 1882 (albeit by a very narrow margin). He remained active in elected politics until 1895 when a revision to the state constitution almost entirely removed Black men from political life, but even then he was able to secure important federal appointments.
Was he guilty?
Was Smalls guilty of the bribery charges? As a matter of law, I'll defer to people trained in the subject. The law professor W. Lewis Burke has argued that one of the other men convicted on corruption charges (Francis L. Cardozo) was innocent. The crux of his argument is a legal one. At the time of trial, the allegations were several years old, and they were being pursued for political reasons. Not just in South Carolina but throughout the country, political corruption was rampant during the 1870s, but the attorney general of South Carolina only prosecuted three people (all influential state Republicans) of the crime. If I understand correctly, Burke's reasoning is that a state prosecutor can't be selective in charging people with crimes. If he turns a blind eye to corruption by conservatives, then he can't prosecute a prominent Republican for the same conduct. Burke's argument applies just as well to Smalls.
What about as a matter of fact? Did Smalls take a bribe? By all accounts, bribery and corruption was pervasive in the South Carolina legislature during the 1870s, so we shouldn't ask for a particularly high burden of proof. (The bank records produced during the Smalls' trial appear to show that twenty-some legislators accepted bribes in spring 1873.) In Smalls's situation, the evidence against him was strong. The main witness, Josephus Woodruff, testified to personally having given Smalls a bribe. Woodruff was not the perfect witness (he admitted under oath to having participated in "great many fraudulent transactions"), but this is not uncommon in corruption cases, and his testimony was consistent with other evidence that was produced. Smalls himself offered no evidence in his defense, and his lawyer simply argued that the prosecution's evidence was not sufficient to convict.
Certainly, Smalls' conviction shouldn't erase his remarkable positive accomplishments, although it does complicate his legacy. The years after the Civil War were a time of tremendous political upheaval, and this created major opportunities for politicians to engage in corruption, an opportunity that far too many took advantage of. Keeping corruption in check was major challenge, and the failure to do so played a major role in the collapse of the Reconstruction government. Smalls should be criticized for be behavior. It is perhaps fitting that South Carolina is creating a statue of Smalls on the statehouse grounds because the other men so honored too left a record marked by both remarkable accomplishments and shocking personal failures.
Sources
1. "In the Meshes of the Law." Yorkville enquirer. [volume], August 09, 1877, Image 2
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